Gauhati High Court
CRL.A(J)/22/2020 on 26 July, 2024
GAHC010077632020
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Appeal (J) No. 22/2020
Moniram Changmai,
S/o. Lt. Bhola Changmai, R/o No. 4 Chepatoli,
P.S.- Tingkhong, Dibrugarh, Assam.
......Appellant.
-Versus-
1. The State of Assam,
Represented by Public Prosecutor, Assam.
2. Smti. Arati Gogoi,
W/o - Late Deokon Gogoi, Vill.- 4 No. Chapatoli,
PS- Tingkhong, District- Dibrugarh, Assam.
......Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellant : Mr. P. Mahanta, Amicus Curiae
......Advocate.
For the Respondents : Mr. P.S. Lahkar, Addl. P.P.
......Advocate.
Date of Hearing : 18.07.2024
Date of Judgment : 26.07.2024
JUDGMENT AND ORDER (CAV)
Heard Mr. P. Mahanta, learned Amicus Curiae for the
accused/appellant and Mr. P.S. Lahkar, learned Additional Public
Prosecutor, Assam, appearing for the State respondent No. 1. None
appears for the respondent No. 2, though the name of one Mr. B.
Baruah, learned counsel is reflected in the cause list.
2. In this appeal, under Section 374(2) of the Code of Criminal
Procedure, 1973 („Cr.P.C., for short), the accused/appellant, namely,
Shri Moniram Changmai, has put to challenge the correctness or
otherwise of the judgment and order of conviction and sentence,
dated 25.06.2019, in Sessions Case No. 15/2019. It is to be noted
here that vide impugned judgment and order dated 25.06.2019, the
learned Additional Sessions Judge (FTC), Dibrugarh, had convicted
the accused/appellant under Section 376 IPC and sentenced him to
suffer rigorous imprisonment for a period of seven years and also to
pay a fine of Rs. 2,000/-, in default of payment of fine, to suffer
simple imprisonment for two months.
3. The background facts, leading to filing of the present criminal
appeal, are briefly stated as under:-
"The informant, Smt. „X‟, (name withheld) is the wife of
Late Deokan Gogoi of No. 4 Chopatoli village, under Tingkhong
P.S. Smt. „Y‟ (name withheld), aged about 16 years, is her
daughter. Shri Moniram Changmai, the present
accused/appellant, aged about 53 years, is her co-villager and
he had committed sexual intercourse with her daughter, Smt.
„Y‟, for last six months by enticing her that he would give
money to her and thereby, impregnated her. Stating above,
inter alia amongst others, the informant Smt. „X‟ lodged one
FIR with the In-Charge, Borbam Police Out Post on 28.07.2016,
upon which the In-Charge, Borbam Police Out Post had
recorded a G.D. Entry, being G.D. Entry No. 341, dated
28.07.2016 and forwarded the same to the Officer In-Charge,
Tingkhong P.S. for registering a case.
On receipt of the FIR from the I/C, Borbam Police Out
Post, the Officer In-Charge, Tingkhong P.S. registered a case,
being Tingkhong P.S. Case No. 88/2016, under Section 376
IPC, read with Section 4 of POCSO Act and endorsed S.I. Nomal
Ch. Bora to investigate the case. The I.O. then visited the place
of occurrence, examined the witnesses, got the victim girl
examined by Doctor and collected the report and also got her
statement recorded under Section 164 Cr.P.C. by a Magistrate
and arrested the accused and forwarded him to the Court. Then
on completion of investigation, the I.O. laid charge-sheet
against the accused/appellant to stand trial in the Court under
Section 376 IPC.
The learned Sessions Judge, Dibrugarh then took
cognizance of the same and registered a case, being POCSO
Case No. 67/2016. Then securing the presence of the
accused/appellant, and after hearing the learned Advocates of
both sides, had framed charges against him under Section
376(2)(n) IPC read with Sections 5/6 of the POCSO Act, on
03.12.2016, and on being read and explained over the same to
the accused/appellant, the accused/appellant pleaded not guilty
and claimed to be tried.
Thereafter, the prosecution side had examined as many as
seven witnesses, including the M.O. and I.O. and after closing
the prosecution evidence, the learned trial Court had examined
the accused/appellant under Section 313 Cr.P.C. The
accused/appellant also had examined one witness in his
defence. While the case was fixed for argument, the learned
Sessions Judge, Dibrugarh had found that the victim is above
18 years and thereafter, converted the case to Sessions case
and transferred it to the Court of learned Addl. Sessions Judge
(FTC), Dibrugarh for disposal, without however, altering the
charge. Thereafter, hearing arguments of learned Advocates of
both sides, the learned trial Court had found that the
prosecution side had succeeded in bringing home the charge
under Section 376 IPC against the accused/appellant beyond all
reasonable doubt and accordingly, convicted and sentenced
him as aforesaid."
4. Being highly aggrieved, the accused/appellant has preferred
this appeal from Central Jail, Dibrugarh on the ground that he is not
satisfied with the judgment and order of conviction and sentence so
passed by the learned Additional Sessions Judge (FTC), Dibrugarh.
No other specific ground has been taken by the accused/appellant.
Upon registration of the appeal, this Court was pleased to appoint Mr.
P. Mahanta, learned counsel as Amicus Curiae to represent
accused/appellant.
5. Mr. P. Mahanta, learned Amicus Curiae for the
accused/appellant submits that except the evidence of the victim,
there is no eyewitness to the occurrence and that the learned trial
Court has convicted the accused/appellant solely on the basis of the
evidence of the victim. But, according to him, the evidence of the
victim girl is full of contradictions, while she had categorically stated
that the occurrence took place in the month of „Chot‟ of the
Assamese calendar year, in her house, while her parents were
absent, yet, in her statement recorded under Section 164 Cr.P.C., she
stated that the occurrence took place in the Month of „Chot‟, and that
her parents were present in her house at that time. Mr. Mahanta
further submits that the evidence of the victim cannot be accepted
because of the contradiction with the medical evidence also.
Referring to the evidence of the Doctor, Mr. Mahanta submits that
the Doctor (P.W.6), had examined the victim girl on 30.07.2016, at
Assam Medical College and Hospital, Dibrugarh in the Department of
Forensic Medicine and after examination, she found no injury on her
private parts of the victim and also found no evidence of recent
sexual intercourse and she had detected evidence of pregnancy, on
her person and duration of her pregnancy as per USG Obstetric
report is 22 weeks and 1 day and as such, the date on which she
conceived falls on 27th February of 2016, and thus, the evidence of
the victim and the evidence of the Doctor cannot be reconciled and
that the victim girl had affairs with someone else and as the evidence
of the victim is not of sterling quality her evidence cannot be relied
upon to convict the accused/appellant, without any corroboration
from the evidence of any independent witness. Therefore, Mr.
Mahanta has contended to extend the benefit of doubt to the
accused/appellant. Referring to the evidence of P.W.3 and of D.W.1,
Mr. Mahanta further submits that the same totally belied the
prosecution version. It is also the submission of Mr. Mahanta that
the FIR was filed after five months, when the pregnancy was
discovered by her mother, without any plausible reason for delay,
which, according to Mr. Mahanta, casts serious doubt about the
veracity of her version. Mr. Mahanta has referred to a decision of
Hon‟ble Supreme Court in the case of State of Uttarakhand vs.
Darshan Singh, reported in (2020) 12 SCC 605, specially to
paragraph No. 43.
6. Per contra, Mr. P.S. Lahkar, learned Additional Public
Prosecutor has supported the impugned judgment and order of
conviction and sentence. Mr. Lahkar, taking this Court through the
evidence of the victim (P.W.1) and also her statement recorded
under Section 164 Cr.P.C., submits that the victim is throughout
consistent and in her statement under Section 164 Cr.P.C. also, she
had categorically stated that the occurrence took place while her
parents were absent and while preparing the paper-book, the
concerned section had committed some typographical mistake in this
regard and as such, the contradiction so pointed out by Mr. Mahanta
could not spell inveracity to the version of the victim. Mr. Lahkar
further submits that it is a fact that the month of „Chot‟ of Assamese
calendar falls in the month of March and the evidence of the Doctor
and the medical report indicate that she became pregnant w.e.f.
February 27th and the difference is not very wide and the same also
could not spell inveracity to the prosecution version and that the
contradictions, so pointed out by Mr. Mahanta are not on material
point and that the same are trivial in nature, and that the evidence of
P.W.3 and D.W.1 cause no dent to the prosecution version, in as
much as, the evidence of D.W.1 is hearsay and he could not state
from whom he had heard about the same and unless the person from
whom he heard about the occurrence is examined, his evidence
cannot be relied upon and there is no basis to accept the evidence of
D.W.1, and therefore, Mr. Lahkar has contended that the evidence of
the victim can be safely relied upon as the same is of sterling quality
and the same is also corroborated by the medical evidence.
Therefore, it is contended to dismiss the appeal. Mr. Lahkar has also
referred to one decision of Hon‟ble Supreme Court in the case of
Phool Singh vs. State of Madhya Pradesh, reported in
(2022) 2 SCC 74.
7. Having heard the submission of learned Advocates of both
sides, I have carefully gone through the appeal and the documents
placed on record and also perused the decisions, so referred by
learned Advocates of both the parties.
8. It is to be noted here that though the accused was charged
under Section 6 read with Section 5 of the POCSO Act, along with
Section 376(2)(n) IPC, subsequently, charge was altered to Section
376 IPC only, in view of medical evidence and the report of the
Doctor which indicates that her age is above 18 years. In absence of
any documentary evidence, admittedly not collected by the I.O.
during investigation, the court has to rely upon the medical evidence
only. That being so, altering the charge to Section 376 IPC from
Section 6 read with 5 of the POCSO Act appears to be justified.
9. It also appears that that the prosecution side has examined as
many as seven witnesses including the M.O. and I.O., and exhibited
five documents i.e. the statement of the victim girl as Exhibit-1, the
Ejahar as Exhibit-2, the Medical Report of the victim as Exhibit-3, the
Sketch Map of the place of occurrence as Exhibit-4, and the Charge-
sheet as Exhibit-5. The accused/appellant also examined one witness
in his defence as D.W.1.
10. The prosecution side has also examined the victim „Y‟ as P.W.1.
Her evidence reveals that the occurrence took place in the month of
„Chot‟, last year of Assamese Calendar year. On the date of
occurrence, in the afternoon, while she was alone in her house, her
mother went out to her neighbour‟s house, then, the accused came
to her house and asked for betel nut, and then the accused gagged
her and took her inside the room, and committed rape upon her on
the bed. She then tried to scream, but, the accused threatened her
not to scream, lest he will cause injury to her and to her mother.
Then being terrified, she did not state the matter to her mother. She
felt pain on her private parts and there was also bleeding from the
same and he also touched her breast and offered her money, and
also told her that he would pay money sometimes for not disclosing
the incident to anybody, and he also asked her not to disclose his
name if somebody asks about the incident and told her to name
someone else. Then after few days, he again committed sexual
intercourse with her. She then skipped her menstrual period, and
when the accused asked her about the menstrual period, she
informed him that she missed her period. Then the accused brought
tablet to her, and after consuming the same, there was bleeding from
her breast. Meanwhile, her mother came to know about the incident
and about missing of the period by her, and when asked, she told her
mother and her Borma about the incident, and also informed her
mother that the accused threatened her, so she did not disclose the
matter to her. Then, a village meeting was held and the accused was
present in the meeting, but, he denied his involvement with the
offence. Then, her mother lodged the FIR (Exhibit-2) with the police
station and then on 25.11.2016, she had given birth to a female child
and the child was given in adoption from the medical, and police got
her statement (Exhibit-1) recorded in the Court.
11. Exhibit-1, the statement of the victim girl recorded under
Section 164 Cr.P.C. also lends corroboration to her version, wherein
also she categorically stated that the occurrence took place in the
month of „Chot‟ (March-April in the year 2016), and at the relevant
time, her mother and other family members were not present at
home, and then the accused came to her house and asked for betel
nut, and when she went inside the house to bring betel nut, then he
also came inside and gagged her and assaulted her and threatened
to kill her if she shouted and thereafter, held her breast and
committed rape upon her. Then, blood came out of her urinary organ
and continued for the whole day and she felt severe pain, then he
asked her not to disclose the matter to her mother or anybody else,
or else he threatened her that he would cut them to death, and also
asked her to name someone else. Then, out of fear, she had not
disclosed the matter to anybody else and thereafter, he had
committed such act on several occasions, and he also used to
enquire about her period and when she missed the period in the
month of Bohag (April-May), her mother asked her about the reason,
but she did not disclose the matter. Then, being frightened about
missing of her period, she reported the matter to her Borma. Then,
on one morning, when the accused came to know about her missing
of her period, he brought tablet to her and she consumed the same
and bleeds in the night. Her evidence also reveals that her mother
and other family members called a meeting, wherein the accused did
not confess his guilt and thereafter, her mother lodged the case and
then the accused fled away and he had committed such act with his
own daughter.
12. Thus, it appears that except minor contradictions here and
there, the statement of the victim under Section 164 Cr.P.C. also fully
corroborated her evidence in material particulars. The
accused/appellant had cross-examined this witness, but nothing
tangible could be elicited in her cross-examination so as to discredit
her version. No material contradiction with her previous statement is
brought on record and proved. It is, however, elicited that the
neighbours did not know about the incident which took place in her
house in the month of „Chot‟, though, if some incident happened in
her house, the neighbours would come to know about such incident.
She denied having falsely implicated the accused. She, however,
admitted that she did not receive any injury in the alleged incident.
She admitted having not stated before police that the accused had
accepted that he had committed rape upon her, and that he offered
her money before police. It is also elicited that her mother came to
know about her incident after five months. She denied the defence
suggestion that no incident had ever taken place. These negative
suggestions, to the considered opinion of this court, have bearing,
what so ever, upon the veracity of her version.
13. The medical evidence also lends corroboration to her evidence.
The prosecution side has examined Dr. Nibedita Shyam, who had
examined the victim, as P.W.6. her evidence reveals that she had
examined the victim at Assam Medical College and Hospital,
Dibrugarh on 30.07.2016, and she found the following:-
On Genital Examination:
Genital organ well developed. Vulva is healthy. Hymen old
tear at 6 O' clock position. Vagina is healthy. Cervix is healthy
and OS closed. Uterus enlarged with fandal height at 20 weeks
gestation. Linea Nigra is present. Foetal movement and foetal
parts palpable, foetal heart rate measures 146 bits per minute.
Vaginal smears were taken from posterior for-nix and around
the cervix. The result of which does not show any spermatozoa.
Then on the basis of the physical examination, radiological and
laboratory investigation done on Smti. „Y‟ he opined as under:-
I. Evidence of recent sexual intercourse not detected on her
person.
II. Evidence of pregnancy detected on her person. Duration of
pregnancy as per USG Obstetric report is 22 weeks and 1
day.
III. Her age is above 18 years.
IV. Evidence of recent injuries not detected on her private
parts.
The medical report, Exhibit-3, submitted by her, is also consistent
with her evidence. It is, however, elicited in cross-examination that
the duration of pregnancy was 5 months at the time of the
examination.
14. Though, P.W.6 had not found any evidence of recent sexual
intercourse on the person of the victim girl, yet, she had detected
pregnancy on her person and duration of the pregnancy was 22
weeks and 1 day (Five months) and also found her age was above 18
years. Thus, to some extent, the medical evidence also lent
corroboration to the version of the victim in respect of the pregnancy
being carried by her on 30.07.2016. It is however a fact that she has
not found any injury on the private part of the victim. Mr. Mahanta,
the learned Amicus Curiae has rightly pointed this out during
argument. But, his submission left this court unimpressed in as much
as the occurrence took place more than five months back. And as
such it is quite natural that after five months of occurrence, no injury
was found by the Doctor on her person. In this context, the
observation made by the Hon‟ble Supreme Court in the case
of Ranjit Hazarika vs. State of Assam reported in (1998)
8 SCC 635, is relevant, wherein it was held in paragraph 5 as
under:-
"The argument of the learned counsel for the
appellant that the medical evidence belies
that testimony of the prosecutrix and her
parents does not impress us. The mere fact
that no injury was found on the private
parts of the prosecutrix or her hymen was
found to be intact does not belie the
statement of the prosecutrix as she nowhere
stated that she bled per vagina as a result
of the penetration of the penis in her
vagina. She was subjected to sexual
intercourse in a standing posture and that
itself indicates the absence of any injury
on her private parts. To constitute the
offence of rape, penetration, however
slight, is sufficient. The prosecutrix
deposed about the performance of sexual
intercourse by the appellant and her
statement has remained unchallenged in the
cross-examination. Neither the non-rupture
of the hymen nor the absence of injuries on
her private parts, therefore, belies the
testimony of the prosecutrix particularly
when we find that in the cross-examination
of the prosecutrix, nothing has been brought
out to doubt her veracity or to suggest as
to why she would falsely implicate the
appellant and put her own reputation at
stake. The opinion of the doctor that no
rape appeared to have been committed was
based only on the absence of rupture of the
hymen and injuries on the private parts of
the prosecutrix. This opinion cannot throw
out an otherwise cogent and trustworthy
evidence of the prosecutrix. Besides, the
opinion of the doctor appears to be based on
"no reasons".
15. P.W.2, Smt. „X‟ is the informant of this case. She is the mother
of the victim girl. Her evidence reveals that in the month of April,
2016, she noticed that her daughter missed her periods. Then, she
asked her, but she did not reply. In the following months also, when
she missed her period, she again asked her about it, but she did not
reply. But, from her appearance, she found that she was pregnant.
Then, her daughter informed her that the accused/appellant forcibly
had sexual intercourse with her on several occasions and she did not
disclose the incident out of fear. As her daughter was pregnant for
five months, so abortion was not possible. Then, her brother-in-law
had arranged for a „village Bichar‟ as her husband has already
suffered demise, and in the said Bichar, the accused/appellant was
present, but, he denied his involvement with the alleged offence in
the said meeting. Then, she approached the police and lodged the
FIR (Exhibit 2) with the Borbam Police Out Post and police got her
statement recorded and also got her daughter examined by Doctor at
the Hospital and got the statement of her daughter recorded by
Magistrate. Her evidence also reveals that in the month of November,
2016, her daughter had given birth to a female child and the said
child was given for adoption.
16. However, it is elicited in her cross-examination that she did
know the contents of the FIR (Exhibit-2) and she lodged the FIR only
after the decision in the meeting. It is also elicited that when her
daughter had missed her period in the month of „Chot‟, she had not
taken her to the Hospital and that her daughter sometimes used to
work in the house of the accused/appellant which is nearby her
house and sometimes he used to pay money to her daughter for her
work. But, whatever is elicited in her cross-examination, could not
demolish the probative value of her evidence that her daughter was
impregnated by the accused/appellant and that she had given birth
of child.
17. Thus, it appears that P.W.2 and the FIR (Exhibit-2) also
corroborated the version of the victim (P.W.1). It is a fact that she is
not the eye witness to the occurrence as the same took place while
she was not present in her house. But, she heard it from the victim
and lodged the FIR, Exhibit-2. And I find no ground to disbelieve her.
18. P.W.3, Sri Ghana Gogoi, is the neighbor of the informant
(P.W.2). His evidence reveals that the victim girl is the daughter of
his younger brother, and the incident took place about eight months
back and he heard that the victim, Smt. „Y‟ had physical relationship
with the accused/appellant and as a result of this relationship, she
became pregnant and thereafter, a meeting was arranged by the
family members and he accompanied the victim to the Court for
recording her statement and also to the medical, where she was sent
for medical examination. And he heard that the victim had given birth
to a female child.
19. It is elicited in his cross-examination that police did not record
his statement and that all his daughters stayed in the house of the
accused/appellant and they grew up there, and that he never heard
anything bad about the accused person‟s character. It is also elicited
that Anupam is his nephew and he is 21 years of age and he did not
know if Anupam had any relation with the victim girl.
20. P.W.4, is Smt. Ranu Gogoi and her evidence reveals that about
6 to 7 months back, she came to know that the victim was
impregnated by the accused/appellant and that she was five months
pregnant and in that connection, the mother of the victim had called
a meeting, wherein the victim disclosed that the accused/appellant
impregnated her and that she was present in the meeting and she
had seen the accused person in the meeting and later on, the victim
gave birth to a baby girl.
21. P.W.5, Smt. Labanya Kotoki also testified that she heard that
the victim girl became pregnant.
22. Thus, it appears that the evidence of P.W.3 and P.W.5 are
hearsay and they could not state in their evidence from whom they
had heard about the occurrence. That being so, no evidentiary value
could be attributed to the evidence of P.W.3 and P.W.5 and the same
could not help the prosecution in establishing the charge. However, it
becomes apparent from the evidence of P.W.3 that the victim had
given birth to a baby girl and this piece of evidence lends support to
the evidence of the victim and thereby strengthened the prosecution
case. On the other hand, P.W.4 had heard from the victim, who had
disclosed in a meeting called by the family members of the victim
that she was impregnated by the accused and that the victim had
given birth to a child. Thus, this witness also corroborated the
evidence of the victim to a considerable extent.
23. P.W.7 is the I.O., who had carried out the investigation and
prepared the sketch map, Exhibit-4, and after completion of
investigation, submitted charge sheet, Exhibit- 5, against the
accused/appellant to stand trial in the court under Section 376(2)(n),
read with Sections 5/6 of the POCSO Act. It is elicited in his cross-
examination that he had not shown the house of the victim‟s uncle,
which is adjacent to the house of the accused/appellant, in the
sketch map and he had not mentioned about the number of rooms,
including the kitchen and verandah, anywhere in the sketch map.
Further, it is elicited that the victim had not stated before him that
her Borma saw the accused visiting her house and that he had not
collected any documentary evidence in respect of the age of the
victim girl.
24. The evidence of victim, thus, goes a long way to establish that
accused Moniram Changmai, the present accused/appellant is
responsible for her pregnancy. Admittedly, there is no eyewitness,
except however, the evidence of the victim. But, having tested her
evidence on the touchstone of the probability, its intrinsic worth and
animus of the witnesses, I find no ground to disbelieve her. She has
no animus to implicate the accused/appellant falsely. The evidence of
P.W.2, the mother of the victim, the medical evidence about the
pregnancy being carried by her and subsequently, giving birth of a
baby girl by her, amply lends credence to her evidence.
25. Though, Mr. Mahanta, the learned Amicus Curiae submits that if
the medical evidence is accepted that her pregnancy on the date of
her medical examination is 22 weeks and 1 day, which was much
prior to the month of „Chot‟, in which the accused/appellant had
allegedly committed rape upon her, yet, it is well settled that when
there is contradiction between medical evidence and ocular evidence,
the ocular evidence will prevail. Reference in this context can be
made to a decision of Hon‟ble Supreme Court in Bhajan Singh v.
State of Haryana, reported in (2011) 7 SCC 421 wherein
Hon‟ble Supreme Court has held as under:-
38. Thus, the position of law in such a case
of contradiction between medical and ocular
evidence can be crystallised to the effect
that though the ocular testimony of a
witness has greater evidentiary value vis-à-
vis medical evidence, when medical evidence
makes the ocular testimony improbable, that
becomes a relevant factor in the process of
the evaluation of evidence. However, where
the medical evidence goes so far that it
completely rules out all possibility of the
ocular evidence being true, the ocular
evidence may be disbelieved. (Vide Abdul
Sayeed [(2010) 10 SCC 259]
26. Same principle is reiterated in the case of Darshan Singh
(supra), so referred by Mr. Mahanta, the learned Amicus Curiae, for
the respondent. In the case in hand the possibility of the ocular
evidence being true, cannot be ruled out by the medical evidence.
That being so, this court is unable to record concurrence to the
submission of Mr. Mahanta, the learned Amicus Curiae for the
accused/appellant.
27. It is also to be taken note of herein this context that the victim
hails from a rural background. She is a rustic village girl and as such
there may be difference of exact month of the occurrence and the
same cannot be a ground to discard the otherwise clear and cogent
evidence of the victim. It is well settled that in appreciating evidence,
court cannot judge evidence of witnesses from rural background by
the same standards of exactitude and consistency as that of
witnesses with urban background. Reference in this context can be
made to a decision of Hon‟ble Supreme Court in Shivaji Sahabrao
Bobade vs. State of Maharastra reported in (1973) 2 SCC
793.
28. It is however a fact that there is delay in lodging the FIR. After
much delay, about 5 months, the FIR was lodged. However, an
explanation is forthcoming for the delay. The victim, in her evidence
categorically stated that she and her mother were threatened to be
killed, if she disclosed the matter to anyone else for which, she did
not disclose the matter to anybody else for about five months. And it
was, when she missed her periods for several occasions and when
her mother noticed her pregnancy, only then she, on repeated asking
by her mother, disclosed the same to her mother P.W.2 about the
incident. She had also disclosed the same in the meeting convened
by her mother, (P.W.2), that it was the accused/appellant who is
responsible for the same. The explanation, so forthcoming for the
delay, appears to be natural in the given facts and circumstance of
the case. And this factum of threatening her for not disclosing the
incident is not disputed by the accused/appellant side. Thus, the
delay, cannot spell inveracity to the prosecution case. Reference in
this context can be made to a decision of Hon‟ble Supreme Court in
State of Punjab vs. Gurmit Singh, reported in (1996) 2
SCC 384.
29. It is to be mentioned here that the victim was subjected to
sexual assault and as such she is an injured witness and on such
count her evidence is on much higher pedestal and the same is
acceptable in absence of corroboration notwithstanding. In this
contest we may gainfully refer to a decision of Hon‟ble Supreme
Court in the case of State of Himachal Pradesh vs. Asha Ram,
reported in AIR 2006 SC 381, wherein Hon‟ble Supreme Court
has held as under:-
"The evidence of a prosecutrix is more
reliable than that of an injured witness. The
testimony of the victim of sexual assault is
vital unless there are compelling reasons,
which necessitate looking for corroboration.
The court should find no difficulty in acting
on the testimony of the victim of sexual
assault alone to convict an accused where her
testimony inspire confidence and it is found
reliable."
30. Same proposition is also laid down in the case of State of
M.P. vs. Doyal Sahu, reported in 2005 Cril.L.J. 4375,
wherein it has been held by Hon‟ble Supreme Court as under:-
"Once the statement of prosecutrix inspires
confidence and accepted by the courts as such,
conviction can be based only on the solitary
evidence of the prosecutrix and no
corroboration would be required unless there
are compelling reasons which necessitate the
courts for corroboration of her statement.
Corroboration of testimony of the prosecutrix
as a condition for judicial reliance is not a
requirement of law but a guidance of prudence
under the given facts and circumstances."
31. It is also worth mentioning in this context that in the case of
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,
reported in (1983) 3 SCC 217, Hon‟ble Supreme Court has
observed as under:-
"Refusal to act on the testimony of a victim
of sexual assault in the absence of
corroboration as a rule is adding insult to
injury. This Court deprecated viewing
evidence of such victim with the aid of
spectacles fitted with lenses tinted with
doubt, disbelief or suspicion."
32. Thus, in the given facts and circumstances on the record and
also relying upon the ratios, so laid down in the cases discussed
herein above, I find the evidence of the victim worth believing and
the same is able to inspire confidence. Mr. P.S. Lahkar, the learned
Addl. P.P. also rightly pointed it out during his argument that the
case law Phool Singh (supra) referred by him also strengthened
his submission. Notably, in the said case it has been held that
conviction on the sole testimony of the victim/prosecutrix is
permissible if her deposition is found to be trustworthy, unblemished,
and credible and is of sterling quality.
33. I have also gone through the evidence of D.W.1, Shri Puna
Borah. His evidence reveals that he heard that the victim had illicit
relationship with her own brother. His evidence also reveals that the
victim used to work in the house of the accused and used to stay
there and on account of dispute being arisen, the accused had
thrown her out from his house. His evidence also reveals that on
suspicion the case was lodged and after the incident the brother of
the victim is missing. It is elicited in his cross-examination that he
does not know what incident took place between the accused and the
victim. The evidence of this witness, being hearsay, as he could not
say from whom he heard that the victim had illicit relationship with
her own brother, cannot be relied upon, and admittedly, he also does
not know what incident took place between the accused/appellant
and the victim. Thus, I find that the defence evidence also could not
outweigh and weaken any part of evidence of the victim and other
prosecution witnesses. Mr. Lahkar, the learned Addl. P.P. thus,
appears to be right in contending that the defence evidence could not
weaken the prosecution case. Therefore, and also in view of the
above factual and legal position, this court is unable to aced to the
submission of Mr. Mahanta that defence evidence cause any dent to
the prosecution version.
34. The outcome of above discussion is that the prosecution side
has been able to prove the charge under Section 376 IPC against the
accused/appellant beyond all reasonable doubt. The learned court
below had convicted the accused/appellant under Section 376 IPC
and sentenced him to suffer rigorous imprisonment for a period of
seven years and also to pay a fine of Rs. 2,000/-, in default of
payment of fine, to suffer simple imprisonment for two months.
Having drawn up a balance sheet of aggravating as well as mitigating
circumstances, the sentence so handed down by the learned trial
court appears to justified and reasonable and the same warrants no
interference of this court.
35. It appears that in the impugned judgment and order, the
learned Court below has not dealt with the issue of awarding
compensation to the victim girl under Section 357A Cr.P.C. Keeping in
mind the object behind enacting such a benevolent provision and also
the scheme adopted by the Government of Assam i.e. Assam Victim
Compensation Scheme, 2012 and also considering the plight of the
victim, this Court is inclined to direct the District Legal Services
Authority, Dibrugarh to examine the matter and award adequate
compensation to the victim girl, if otherwise she is eligible for the
same. This exercise has to be carried out within a period of two
months from the date of receipt of this judgment and order.
36. In the result, I find no merit in this appeal, and accordingly, the
same stands dismissed. Send down the record of the learned trial
Court with a copy of this judgment and order. The parties have to
bear their own cost.
37. Before parting with the record, I wish to place my appreciation
on record as regards the services rendered by Mr. P. Mahanta,
learned Amicus Curiae appearing for the accused/appellant and direct
the Registry to make available to him just remuneration as per the
notified fee structure applicable to the Amicus Curiae.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
